92 Decision Citation: BVA 92-19077
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 89-26 395 ) DATE
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THE ISSUE
Entitlement to a permanent and total disability rating for
pension purposes.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
William L. Pine, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1954 to
November 1956.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of June 12, 1989,
from the St. Petersburg, Florida, Regional Office (VARO).
The VARO notified the appellant of the decision and of his
appellate rights by a letter dated June 15, 1989. The
notice of disagreement was received on June 30, 1989. The
statement of the case was issued on July 31, 1989. The
substantive appeal was received on August 18, 1989. The
appellant submitted another substantive appeal on August 31,
1989, requesting hearings at both the Regional Office and at
the Board in Washington, D.C. The appeal was received at
the Board on September 7, 1989. The appellant's
representative in this matter, The American Legion, provided
an informal hearing presentation in February 1990. In April
1990 the appellant reiterated his specific request for a
hearing at the Regional Office, specifically. The Board
administratively remanded the case to the VARO in June 1990
to afford the appellant a hearing. There was a hearing at
the VARO in September 1990. A supplemental statement of the
case was issued in November 1990. The record does not
indicate the date of subsequent receipt at the Board.
Memoranda in the file indicate that during 1991 2 personal
hearings were scheduled at the Board, but that the veteran
indicated that he was unable to appear at either of those
hearings. There was a hearing on appeal before a Section of
the Board on January 13, 1992. On March 2, 1992, the case
was again remanded to the VARO due to pending VA action in
response to a ruling of the United States Court of Veterans
Appeals. The appeal was again received at the Board on
April 17, 1992, certified for appeal on the instant issue
only. The appellant's representative in this matter, The
American Legion, provided an informal hearing presentation
on April 30, 1992.
REMAND
The veteran presents a well-grounded claim, 38 U.S.C.
§ 5107(a) (1992). The Department of Veterans Affairs (VA)
has a statutory duty to assist the veteran in the
development of facts pertinent to his claim. Id. Under the
circumstances of this case, we are of the opinion that
additional assistance is required. Schafrath v. Derwinski,
1 Vet.App. 589 (1991); Littke v. Derwinski, 1 Vet.App. 90
(1990); Murphy v. Derwinski, 1 Vet.App. 78 (1990).
The appellant contends, and has testified at hearings, that
he is permanently and totally disabled by the following
disorders: residuals of a fracture of the left leg, right
knee, both shoulders, left foot (distinguished from fracture
of left leg) left arm, head injury resulting in occasional
blackouts, losses in hearing, taste and smell, hypertension,
hiatal hernia and psychiatric disorder. He argues that he
is unable to pursue the only vocation at which he has
experience and competency, and that the grant of benefits by
the Social Security Administration is evidence of his total
disability. He further contends that the shoulder, knee and
foot disorders were actually incurred in service, with the
latter incurred during active duty with the National Guard
during or after 1948 (the terminal date of National Guard
service was not specified). He avers that he has never had
a complete VA physical examination for pension purposes and
the claims folder does not contain his complete medical
records. He argues that the record is inadequate for
appellate review.
The Board has reviewed the claims folder. The record
contains oblique references to sources of evidence and the
likely existence of medical records not obtained by the VA
and which should be. The VA outpatient records of 1989 and
1990 refer to the appellant as a paranoid schizophrenic and
show referral to a VA mental hygiene clinic, but no
psychiatric reports are of record. The appellant testified
that he had had brain scan studies at a VA medical center
during the three months preceding that hearing, but no
records have been obtained. Statements at the hearing
regarding benefits from the Social Security Administration
(SSA) may be based partly on psychiatric disability, but the
VARO has not sought pertinent medical records. Any evidence
relating to an award of disability benefits by the SSA is
pertinent, Murphy at 81-82; Collier at 416-17; Brown v.
Derwinski, U.S. Vet. App. No. 90-505 (June 1, 1992); Roberts
v. Derwinski, U.S. Vet. App. No. 90-606 (May 15, 1992).
With respect to the appellant's claim that he has never had
a complete VA examination to evaluate him for pension
purposes, we note that he did, in fact, have such an
examination in 1986, but because of the addition of many
more alleged disorders, we feel a more recent and complete
examination is in order.
In developing the total disability and pension claims, the
VARO must apply all pertinent regulations, see 38 C.F.R.
§§ 3.321, 4.15-.19 (1991), and each nonservice-connected
medical condition the appellant has must be separately rated
and a combined rating calculated based on the evidence of
record. 38 C.F.R. § 4.25 (1991). If the appellant has any
disabilities that are not properly included in the rating
computation, i.e., disabilities caused by willful
misconduct, then their exclusion must be explained and the
amount of disability attributed to them quantified.
Abernathy v. Derwinski, U.S. Vet.App. No. 90-1068 (May 20,
1992). Following a complete listing and rating of
disabilities, the claim for pension must first be considered
under the provisions of 38 U.S.C. § 1502(a)(1) and 38 C.F.R.
§ 4.15 regarding permanent and total disability ("average
person" standard). If the "objective" standard criteria are
not met, the pension claim must next be analyzed under the
provisions of 38 C.F.R. § 4.17 regarding unemployability,
considering the percentage requirements of 38 C.F.R.
§ 4.16. The next step, if required, is to consider the
pension claim under 38 C.F.R. § 3.321(b)(2). We note, in
particular, that the supplemental statement of the case
should clearly set forth that all of the required steps
outlined in this paragraph have been accomplished.
In his testimony at several hearings, the appellant averred
that several of his alleged disabilities were incurred in
service. The right knee and the left shoulder claims were
denied by a rating decision of June 1981, which was not
timely appealed, and the right knee, right shoulder and a
head injury were the subject of a Board decision denying
service connection in April 1989. It is not clear whether
the appellant is attempting to reopen previously denied
claims. If so, the status of those disorders, i.e., whether
they are ultimately established to be service connected, is
inextricably intertwined with the matter of entitlement to
pension benefits. Consequently, the appellant's exact
claims and their bases should be determined before appellate
review of this case. See Harris v. Derwinski, 1 Vet.App.
180 (1991) (a decision of the Board on fewer than all of
inextricably intertwined claims is not a final decision).
He should also be advised of the legal significance of prior
unappealed decisions.
Likewise, the appellant has testified to service incurrence
of disorders which were not previously claimed. He alleges
residual of a snake bite on the left arm in service and a
crushing injury to the left foot during active duty with the
National Guard during or after 1948. It is considered that
adjudication of those claims should be undertaken prior to
consideration of the veteran's pension claim.
Accordingly, the case is REMANDED to the originating agency
for the following:
1. Request the appellant to clarify whether he is
claiming service connection for any disabilities
and, if so, to specify which ones.
2. Obtain the appellant's complete outpatient
treatment records from VAMC Gainesville, requesting
in particular records of any brain scans or
psychiatric examination or treatment, and add them
to the claims folder.
3. Request the Social Security Administration to
provide records, including medical records,
pertaining to the award of SSI benefits to the
appellant, and add them to the claims folder.
4. Request the service department to verify service
with the Army National Guard during and after 1948,
including verification of any periods of active duty
for training or inactive duty training, and add any
report to the claims folder.
5. Schedule the appellant for a VA Social and
Industrial survey to determine the extent of the
appellant's employability and the causes of any
limitations found and add the report to the claims
folder.
6. Schedule the appellant for a comprehensive VA
examination, including a psychiatric examination, to
establish or rule out a diagnosis for each of the
complaints listed in paragraph 2 of the text of the
REMAND section of this decision; any other
specialist examinations indicated should be
performed, with special care in coordination of
those examinations. Department of Veterans Affairs,
Physician's Guide for Disability Evaluation
Examinations 1.8 (1985) [hereinafter Physician's
Guide]. Provide each examiner with the appellant's
claims folder or a copy of the complete medical
record. Physician's Guide 1.12. The examiner or
examiners should include an assessment of the
contribution of each positive finding to the
appellant's over all level of disability,
emphasizing the limitation of activity imposed by
the disabling conditions, viewed in relation to its
history, considered from the point of view of the
appellant working or seeking work, with a full
description of the effects of disability upon the
appellant's ordinary activity. 38 C.F.R. §§ 4.1,
4.2, 4.10 (1991).
7. When the above is complete, rate each of the
disabilities diagnosed in the examinations, whether
currently service connected or not, and combine the
evaluations, appropriately grouped as
service-connected or nonservice-connected.
38 C.F.R. § 4.25 (1991).
Thereafter, personnel of the originating agency shall
readjudicate the pension claim, assigning a schedular
evaluation to each confirmed diagnosis, and adjudicate any
claim for service connection raised pursuant to instruction
(1), above, and determine whether the appellant's claim may
now be allowed. If not, provide the appellant with an
appropriate supplemental statement of the case, particularly
including the law and regulations pertaining to pension
claims and to prior final decisions of the VARO and of the
Board, indicating that he has a reasonable time to respond,
and return the case to the Board for further appellate
consideration, if appropriate.
This REMAND is to develop evidence and to ensure the
appellant is afforded due process of law. Appellate review
of the claim for pension benefits is deferred pending
completion of the dictates of this order. The Board
intimates no opinion as to the final outcome warranted in
this case.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
BETTINA S. CALLAWAY MATTHEW J. GORMLEY, III
KENNETH R. ANDREWS, JR.
Under 38 U.S.C. § 7252 (1992), only a decision of the Board
of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of
a preliminary order and does not constitute a decision of
the Board on the merits of your appeal.